United States District Court, E.D. North Carolina, Eastern Division, Admiralty
ALBERT G. VANDERMEER, Plaintiff,
M/V CHARAZZ EX-SIP'N'TIME NC 7055 DF HIN#RPGUSA13A900, her boats, tackle, apparel, furniture, engines, fishing history and permits, and appurtenances, etc., in rem, and GRAND SLAM YACHT & BOAT SALES LLC; WILTON CARLYLE GAY; and JAMES ALLEN HINDS, in Personam, Defendants.
C. Dever, III Chief United States District Judge.
G. Vandermeer ("Vandermeer" or
"plaintiff") seeks to recover damages for personal
injuries he sustained in a boating accident. See Am. Compl.
[D.E. 7]. On October 2, 2016, Wilton Carlyle Gay
("Gay" or "defendant") moved for summary
judgment [D.E. 58-60]. On October 26, 2016, Vandermeer
responded in opposition [D.E. 68-72]. On November 9, 2016,
Gay replied [D.E. 76]. As explained below, the court denies
Gay's motion for summary judgment.
February 2, 2013, a boating accident occurred in the Bogue
Sound Area of the Atlantic Intercoastal Waterway in Carteret
County, North Carolina. See Am. Compl. [D.E. 7] ¶ 17;
Answer [D.E. 38] ¶ 17. At the time, M/V
SIP'N'TIME (later M/V CHARAZZ) ("the
vessel") was undergoing a sea-trial to ensure that all
systems were operational as a routine part of the sale of the
vessel to a new owner. Am. Compl. ¶ 20; Answer ¶
20. The buyer, Dale Rasmussen ("Rasmussen"), hired
Vandermeer, a marine surveyor, to conduct a survey of the
vessel and, in particular, to inspect recent repairs to the
engine. Am. Compl. ¶ 13; Answer ¶ 13. Gay owned the
vessel and retained defendants Grand Slam Yacht and Boat
Sales, LLC ("Grand Slam") and James Hinds
("Hinds") to broker the sale. Am. Compl.
¶¶ 8-9; Answer ¶¶ 8-9.
daughter, Lois Hinds Brooks ("Brooks"), owns and
operates Grand Slam. Brooks Dep. 9:1 [D.E. 72-1] 3. According
to Brooks, she is the sole owner, manager, and operator of
Grand Slam, and never employed Hinds. Brooks Dep. 10:2-4, 9:1
[D.E. 72-1] 3. According to Hinds, he is an independent
subcontractor who acted through his own corporation, Tale
Dancer Charters (d/b/a Just Add Water Boat Sales). Hinds Dep.
16:2-5 [D.E. 66-1] 2. Gay did not know the details of the
relationship between Grand Slam and Hinds, but believed that
Hinds was a Grand Slam employee at all relevant times. See
Gay Dep. 12:19-25 [D.E. 72-2] 3.
February 2, 2013, Vandermeer, Hinds, Rasmussen, and another
unidentified individual, [D.E. 72-2] 6, were onboard the
vessel conducting a pre-purchase sea-trial. Am. Compl.
¶¶ 17, 20. Two prior sea-trials had been conducted,
during which Vandermeer noticed fiberglass delamination and
engine problems. See Vandermeer Dep. 38:3-10 [D.E. 72-3] 10.
On February 2, 2013, the parties undertook another sea-trial
to ensure that the repairs had been completed correctly.
[D.E. 59] ¶ 14; [D.E. 69] ¶ 14. During this
sea-trial, Vandermeer wanted to test the engines at a high
RPM to determine if they would operate properly under those
conditions without overheating or losing oil pressure. See
Vandermeer Dep. 62:5-24 [D.E. 72-3] 16. Gay was not available
to operate the vessel during the sea-trial. Thus, pursuant to
Brooks's request, Gay authorized Hinds to operate the
vessel for the sea-trial. [D.E. 71-1]; Gay Dep. 31-32 [D.E.
navigated the vessel by steering in a zig-zag manner between
the markers denoting the channel. Vandermeer Dep. 56:8-22
[D.E. 72-3] 14. Over the course of approximately thirty
minutes, Vandermeer observed the relevant instruments and
successfully completed his survey. Id. 57:19 [D.E.
72-3] 15. Shortly thereafter, the boat ran hard aground,
decelerating from a speed between 30 and 35 knots to stopped
within a matter of seconds. Id. 58:21-25 [D.E. 72-3]
the grounding, Vandermeer fell down the companionway into the
vessel's main cabin and sustained injuries to his
"head, shoulder, arm, back[, ] and other body
parts." Am. Compl. ¶¶ 32-33. Vandermeer
"experienced immediate excruciating pain,
light-headedness, physical impairments[, ] and
numbness." Id. ¶ 34. Vandermeer was
"diagnosed with numerous permanent physical injuries,
including, ... 7 broken vertebrae, ... a broken shoulder,
[and] breaks of multiple spinous processes."
Id. ¶ 40. Vandermeer also has undergone
"serious and life-altering surgeries for fusion of his
L4-L5 spinal bodies, shoulder surgery, and other
procedures." Id. ¶ 41.
parties dispute whether to apply North Carolina law or
federal admiralty law. Gay contends that North Carolina's
common law of negligence, not federal admiralty law, applies
because: (1) Vandermeer pled "a traditional state court
cause of action" by alleging negligence in the
complaint, [D.E. 76] 2; see Am. Compl. ¶¶ 43-46;
and (2) Vandermeer never asserted a negligence claim against
Gay as owner of the vessel. See [D.E. 76] 2.
a federal court hearing a tort claim will apply the
substantive tort law of the state where the federal court
sits. See, e.g.. Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938). However, recovery for a "tort committed
on navigable water, whether brought under federal admiralty
jurisdiction, in state court under the saving-to-suitors
clause, or in federal court under diversity jurisdiction,
[is] governed by admiralty law." Byrd v. Byrd,
657 F.2d 615, 617 (4th Cir. 1981); see Kermarec v.
Compagnie Generate Transatlantique, 358 U.S. 625, 628
(1959). Federal courts decide admiralty cases under admiralty
jurisdiction, according to the substantive law of admiralty.
See E. River S.S. Corp. v. Transamerica Delaval.
Inc., 476 U.S. 858, 864 (1986); Kermarec, 358
U.S. at 628; Md. Dep't of Nat. Res, v. Kellum,
51 F.3d 1220, 1223 (4th Cir. 1995). When sitting in
admiralty, a federal court may supplement federal admiralty
law with state law where there is no directly applicable
admiralty law. See Ost-West-Handel Bruno Bischoff GmbH v.
Project Asia Line. Inc., 160 F.3d 170, 174 (4th Cir.
1998); Byrd, 657 F.2d at 617.
amended complaint identifies this case as an action
"under the Admiralty and Maritime Law of the United
States." Am. Compl. ¶ 1. It also references Federal
Rule of Civil Procedure 9(h), which deals exclusively with
admiralty and maritime claims, and 28 U.S.C. § 1333 and
46 U.S.C. § 30103 et seq.. which are admiralty statutes.
See Id. Furthermore, the amended complaint alleges
that Vandermeer and all defendants are citizens of North
Carolina, which destroys complete diversity under 28 U.S.C.
§ 1332. Id. ¶¶2-5. The amended
complaint then discusses the facts (id. ¶¶
16-42) and raises a single cause of action-negligence-against
all defendants. See Id. ¶¶ 43-46. The
amended complaint does not reference North Carolina law.
Having reviewed the record and governing law, the court
concludes that federal admiralty law applies.
Gay's argument that Vandermeer cannot hold Gay liable for
his alleged negligence as owner of the vessel because
Vandermeer did not explicitly raise this legal theory in the
amended complaint, the court rejects the argument. Generally,
parties may not use summary judgment as a vehicle for
asserting new claims not contained in the complaint. See,
e.g.. Gilbert v. Deutsche Bank Tr. Co. Ams.,
No. 4:09-CV-181-D, 2017 WL 1012981, at *2 n.2 (E.D. N.C. Mar.
14, 2017) (unpublished); Hexion Specialty Chems., Inc. v.
Oak-Bark Corp., No. 7:09-CV-105-D, 2011 WL 4527382, at
*7 (E.D. N.C. Sept. 28, 2011) (unpublished) (collecting
cases). The pleading requirements under the federal rules and
relevant cases require a short and plain statement of the
claim showing that the pleader is entitled to relief and
giving the defendant adequate notice of the nature of the
claims against him. See Fed.R.Civ.P. 8(a),
9(h); Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
562-63, 570 (2007); Coleman v. Md. Court of Appeals,
626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30
(2012); Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008); accord Erickson v. Pardus, 551 U.S.
89, 93-94 (2007) (per curiam); Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To
survive a motion to dismiss, a plaintiff must allege facts
sufficient to plausibly allege a claim for relief, but need
not assert a legal theory. See Johnson v. City of
Shelby, 135 S.Ct. 346, 346 (2014) (per curiam); 5
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1215 (3d ed. 2017); 2-8 James Wm. Moore,
Moore's Federal Practice - Civil § 8.04 (2017); see
also Hanson v. Hoffman, 628 F.2d 42, 53 (D.C. Cir.
1980); Hostrop v. Bd. of Jr. College Dist. No. 515. Cook
& Will Ctys. & State of Ill., 523 F.2d 569.581
(7th Cir. 1975): Nagler v. Admiral Corp., 248 F.2d
319. 325 n.9 (2d Cir. 1957). Twombly and Iqbal "concern
the factual allegations a complaint must contain, " but
do not require that plaintiffs assert a legal theory for
relief. See City of Shelby, 135 S.Ct. at 347. In
fact, when assessing a complaint's sufficiency, courts do
not look to the legal conclusions in the complaint. See,
e.g.. Iqbal, 556 U.S. at 677-79. Likewise, plaintiffs
need not use "any precise or magical words in [their]
pleading[s]" or proper legal-theory headings to state a
claim for relief under Rule 8(a). See King v.
Rubenstein, 825 F.3d 206, 222 (4th Cir. 2016) (quotation
pleading requires that a complaint put a defendant on notice
of the claims against him. Sometimes where a plaintiff does
plead a legal theory, recovery on a different legal theory is
barred if the defendant had no notice of the different
theory. See Ruivo v. Wells Fargo Bank. N.A., 766
F.3d 87, 91 (1st Cir. 2014) (holding that pleading a state
statutory action did not give notice of common-law fraud
claim); Marie v. Am. Red Cross,771 F.3d 344, 365
(6th Cir. 2014) (holding that pleading Title VII and 42
U.S.C. § 1983 claims did not give notice of a claim
under Bivens). Gay invokes this line of cases and